The Supreme Court Breakfast Table

This "Adequate" Substitute for Habeas ...
An email conversation about the news of the day.
June 24 2008 11:30 PM

The Supreme Court Breakfast Table

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Dear Walter and Dahlia and Jack:

Jack and Dahlia—you're both correctly focused on the hard and important question of the procedures that should govern going forward in the detainee cases, a question not resolved by the Supreme Court decision (although you might not know that from some of the overheated commentary on the case). But I think it's also important to dwell a bit more on the procedures that were at issue before the Supreme Court—particularly in light of Chief Justice Roberts' dissent arguing that these procedures should have been given a chance to work—a point that, while I do not agree with it, I find considerably more substantial than the table-thumping in Justice Scalia's dissent. It's especially important to understand what was at stake here in light of denunciations like Sen. McCain's castigation of Boumediene as "one of the worst decisions in history."

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The debate over the "adequacy of a substitute for habeas" and the nature of legal procedures can sound dry and technical. I think it's worth remembering two important points, both of which help to humanize the question of the adequacy of procedures.

The first is that principles like representation by counsel really do matter in allowing innocent people who have been locked up to show their innocence. Nowhere was this point demonstrated more vividly than in Seth Waxman's rebuttal in his Supreme Court argument on behalf of the detainees. It is quite simply one of the best rebuttals I have ever heard in any court, and it bears quoting at length. Recall that these are the last words the justices heard in the Guantanamo argument, and think about the impact they must have made on a justice like, say, Anthony Kennedy:

WAXMAN: ... Mr. Kurnaz ... was a petitioner in this court, but he has since been released by the government because of the fact that he had what the CSRTs [the military tribunals] won't give him, which is a lawyer. He was told, two years after he was detained—he's a German permanent resident—he was told at his CSRT, as many of these individuals were not, that he was being held because he associated with a known terrorist. And he was told the name.

He was told that he associated with somebody called Selcook Bilgen who, the government contended, was ... a terrorist, who was—had blown himself up while Mr. Kurnaz was in detention ... and in a suicide bombing; and all that Mr. Kurnaz could say at his CSRT where he had no lawyer and had no access to information was, 'I never had any reason to suspect he was a terrorist.'

Well, when the government, in the habeas proceedings [which the government believed should not have been allowed], filed its factual return in Judge Green's court, it filed as its factual return the CSRT record.

His counsel saw that accusation. Within 24 hours, his counsel had affidavits not only from the German prosecutor but from the supposedly deceased Mr. Bilgen, who is a resident of Dresden never involved in terrorism and fully getting on with his life.

That's what—and that evidence would not have been allowed in under DTA review [the procedure at issue in the Supreme Court case]. It wouldn't have been in the CSRT, and it won't come in under DTA review.

And that's why it is inadequate.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Waxman.

As Waxman dramatically showed in this rebuttal, a right such as the right to counsel is not merely an addition or subtraction in a zero-sum game in a battle between liberty and security; it can also be an indispensable engine in the search for truth, which presumably benefits both liberty and security.

The second important point to remember is that some senior military officials with actual responsibility for the military tribunals were appalled by the tribunals. For example, last summer, Lt. Col. Stephen E. Abraham, who had been a member of one of the military's hearing panels, testified to Congress: "Not only I, but the other members of the panel said, 'This is garbage.' " Abraham further explained, "What I expected and what occurred were two entirely different things. ... What I expected was a fundamentally fair process." His complaints about the process were brushed aside, he said, because "a quick result was preferred over a probing inquiry."

In fairness, not all military officials shared this view. But the accounts of Abraham and other senior military insiders provide a searing context for the objection that the procedures should have been given more of a chance to work. 

Jack, you emphasize the role that the political branches must play in fashioning appropriate procedures, and I generally agree with that emphasis. But I also think it's important to realize, as the Supreme Court has emphasized, that those imprisoned at Guantanamo have been there for years, some taken from their families far from any battlefield in Afghanistan (as Kennedy explained, "from places as far away from there as Bosnia and Gambia"). When we further remember that the detainees have not been given the opportunity that was provided to Mr. Kurnaz in Waxman's rebuttal example and that, instead, they've been given only a weak and limited process that military officials themselves denounced, I think that—one way or another—we need to move quickly to finally provide the detainees with fair procedures in which to address their imprisonment.

Best,
Cliff

Cliff Sloan, the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, is a partner at Skadden, Arps, Slate, Meagher, & Flom and a former publisher of Slate. He has argued five Supreme Court cases.

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